Origins of Earth Law

The oldest hominid (a term scientists apply to humans and their two-legged pre-human predecessors) is 7 million years old.[1] Agriculture appeared only 12,000 years ago[2]. That means in the intervening millions of years, humans moved across the land, living in a way that left the lightest footprint on the environment.

From these gatherer-hunter roots, Traditional Ecological Knowledge (TEK) of Indigenous peoples of the world developed. Indigenous people are people defined in international or national legislation as having a set of specific rights based on their historical ties to a particular territory, and their cultural or historical distinctiveness from other populations that are often politically dominant.[3]

TEK acknowledges the intrinsic rights of all living systems to exist, persist, and flourish. This sense of place and concern for individuals leads to two basic TEK concepts: 1) all things are connected and 2) all things are related. Humans are not the center of the universal web, just one strand of many. Indigenous cultures view both themselves and nature as part of an extended ecological family that shares ancestry and origins.[4]

Rediscovery of Earth Law

In contrast, the ability of western scientific and technological advances to manipulate everything within reach (including each other) seems sourced from our ability to divest ourselves from all living systems. A Post-Enlightenment Western scientific worldview uses terms such as “natural resources” to describe everything other than humans and man-made objects. This perspective holds the other as property and therefore something to be used to our advantage. Even words like “protect” and “conserve” imply ownership, apart and separate.

Now, the world at large seems to be rediscovering indigenous wisdom by coming around to the idea that humans are part of a complex whole – not outside and independent of it. This includes an awareness that nature’s connection to humans determines the continued health and well-being of humans. According to the Dalai Lama, “Today we understand that the future of humanity very much depends on our planet, and that the future of the planet very much depends on humanity. But this has not always been so clear to us. Until now, you see, Mother Earth has somehow tolerated sloppy house habits. But now human use, population, and technology have reached that certain stage where Mother Earth no longer accepts our presence with silence. In many ways she is now telling us, ‘My children are behaving badly,’ she is warning us that there are limits to our actions.”[5]

Earth Law (also known as Wild Law or Earth Jurisprudence, from the book by Cormac Cullinan) shares similar perspectives on nature as the Indigenous worldview. Christopher D. Stone’s Should Trees Have Standing first argued for rights of nature in 1972, saying, “I am quite seriously proposing that we give legal rights to forests, oceans, rivers and other so-called ‘natural objects’ in the environment – indeed, to the natural environment as a whole.”[6]

While a singular view of nature does not exist across the myriad indigenous cultures, it’s useful to look for commonalities across a specific group – such as Native American cultures – for a clue about the orientation of indigenous cultures towards nature. Key commonalities include:

· Nature is something we live within and as a part of it. No essential separation, no transcendental dualism, no Enlightenment search for objectivity, no Puritan fear of dangerous, chaotic nature, no distant observation in Romanticism.

· Nature is the location of spirituality, both in individual beings (usually animals) and in a more general sense of the sacred.

Earth Law is a philosophy of law and human governance that is based on the idea that humans are only one part of a wider community of beings and that the welfare of each member of that community is dependent on the welfare of the Earth as a whole. It states that human societies will only be viable and flourish if they regulate themselves as part of this wider Earth community and do so in a way that is consistent with the fundamental laws or principles that govern how the universe functions, which is the ‘Great Jurisprudence’.[8]

In If Nature had Rights, a 2008 article in Orion Magazine, author Cormac Cullinan notes, “If we accept [Thomas] Berry’s propositions that the Earth is a communion of subjects, and that rights originate where the universe originates and not from human jurisprudence, it means we cannot claim that humans have human rights without conceding that other members of the Earth Community also have rights. In other words, the rights of the members of the Community are indivisible – there cannot be rights for some without there being rights for all.”[9]

In a 1972 case Sierra Club v. Morton, The Walt Disney Company sought to build a $35 million ski resort in the subalpine glacial valley of Mineral King, in California. The project had received all the permits to go forward, and Walt Disney had personally begun buying private property around Mineral King, when Sierra Club Legal Defense Fund (now called Earthjustice) sued the United States Secretary of the Interior in San Francisco federal court to block development of the ski resort. Although Sierra Club lost the battle, they won the war. The case moved forward after Sierra Club amended its complaint and Governor Regan withdrew his support. Mineral King was ultimately never developed and was subsequently absorbed into Sequoia National Park.

Justice William O. Douglas wrote a now famous dissenting opinion which states in part:

The voice of the inanimate object, therefore, should not be stilled. That does not mean that the judiciary takes over the managerial functions from the federal agency. It merely means that before these priceless bits of Americana (such as a valley, an alpine meadow, a river, or a lake) are forever lost or are so transformed as to be reduced to the eventual rubble of our urban environment, the voice of the existing beneficiaries of these environmental wonders should be heard … That is why these environmental issues should be tendered by the inanimate object itself. Then there will be assurances that all of the forms of life which it represents will stand before the court – the pileated woodpecker as well as the coyote and bear, the lemmings as well as the trout in the streams. Those inarticulate members of the ecological group cannot speak. But those people who have so frequented the place as to know its values and wonders will be able to speak for the entire ecological community.

Earth Law in Practice

On March 14, 2017, the Whanganui in New Zealand became the first river in the world to gain legal rights. The Whanganui Iwi (tribes) have fought for recognition of their relationship to the river since the 1870s, so the decision brings New Zealand’s longest running litigation in history to a close.[10] New Zealand's attorney general Chris Finlayson was quoted in the New York Times as acknowledging the Maori perspective as formative in the granting of rights to these natural entities, saying, “In their worldview, ‘I am the river and the river is me.” He added adding that “Their geographic region is part and parcel of who they are.”[11]

Rule of law is a framework based on rules meant to govern all individuals regardless of their stature or position. Rule of law is defined as the restriction of the arbitrary exercise of power by subordinating it to well-defined and established laws. Since its inception, the law has not just enabled, but helped further social evolution in the way that crampons assist the mountain climber. The law provides guidelines and support. The law also sets a baseline, to ensure that behavior does not fall below that (and when it does, there are consequences). Law can be one of the most useful tools in our drive to stop and reverse environmental destruction.

The Whanganui is by no means alone. In 2008, Ecuador became the first country to include Rights of Nature in its Constitution. In 2010, Bolivia passed its Law of Rights of Mother Earth. The Atrato River in Colombia gained legal rights as a result of a case presented by the Colombian NGO Tierra Digna, Afro-Colombian organizations, and indigenous organizations.[12]

The amendment to the Ecuadorian Constitution was sourced from indigenous cultural perspectives. Traditional indigenous cultures prefer the term Mother Earth in referring to nature and our planet as it connotes the sacred relationship of all life. The reference employed by the Ecuadorian Constitution is "Nature, or Pachamama (Quechua for Mother Earth) where life is reproduced and exists".[13] The Kichwa notion of “Sumak Kawsay” or “buen vivir” in Spanish translates roughly to good living in English. It expresses the idea of harmonious, balanced living among people and nature. The idea centers on living “well” rather than “better” and thus rejects the capitalist logic of increasing accumulation and material improvement. Nature is conceived as part of the social fabric of life, rather than a resource to be exploited or as a tool of production. The Preamble of the Ecuadorian Constitution reads:

“We women and men, the sovereign people of Ecuador recognizing our age-old roots, wrought by women and men from various peoples, Celebrating nature, the Pachamama (Mother Earth), of which we are a part and which is vital to our existence…. Hereby decide to build a new form of public coexistence, in diversity and in harmony with nature, to achieve the good way of living, the sumac kawsay.”[14]

Conclusion

We have the opportunity now to shift the paradigm, from one in which everything and everyone can be considered property to one in which all living systems and beings are equal partners. We can do this by legally recognizing the inherent value and rights of the ecosystem whose support is essential to the survival of all living things on the planet (including us). This paradigm shift puts Earth at the center, with all its myriad parts as subjects within the whole. It recognizes that the biosphere called Earth has an inherent right to exist, thrive and evolve. Securing those rights in a court of law helps substantiate that shift in perspective, and gives citizens and local communities standing in the courts to defend the health and well being of living systems.

As the Cree Proverb states, “Only when the last tree has died, the last river been poisoned, and the last fish been caught will we realize we cannot eat money.” [15]